Judge Partially Dismisses Lawsuit Challenging Voter Approval of Waterfront Development

Bay City News - March 26, 2015

A San Francisco Superior Court judge is allowing a lawsuit to proceed that could invalidate a 2014 voter-approved ballot measure, known as Proposition B, which requires developers to seek approval from voters prior to construction of any project that exceeds height limits on port property.

The lawsuit, filed by the California State Lands Commission against the City and County of San Francisco, after the measure was approved in the June 2014 election, aims to invalidate the voter-approved measure that gives San Franciscans a right to vote on height increases for new development on waterfront property managed by the Port of San Francisco.

On Wednesday, Judge Suzanne R. Bolanos dismissed portions of the suit, but allowed the parts dealing with state interests to proceed, according to the San Francisco City Attorney’s Office.

The ruling upholds the power of San Franciscans to determine building heights on the city’s waterfront, San Francisco City Attorney Dennis Herrera said in a statement Wednesday.

Herrera said he is pleased that the judge dismissed the commission’s claim that the measure conflicts with the city’s charter and that judge acknowledged that the measure is consistent with the Burton Act.

“This ruling upholds the power of San Francisco and its voters over building heights on the City’s waterfront, and is in keeping with over 45 years of land use regulation in San Francisco,” Herrera said.

However, Bolanos denied the City Attorney’s motion to dismiss the entire case and she granted the State Lands Commission an opportunity to prove that the passage of Proposition B harms state interests on San Francisco’s waterfront.

Herrera said his office is prepared to show the court that Proposition B is currently not so burdensome to the Port of San Francisco as to be preempted by state law.

Jon Golinger, an activist with the group No Wall on the Waterfront, which supported Proposition B and maintains that San Franciscans deserve the right to weigh in on what gets built on their waterfront, expressed his pleasure with the judge’s ruling.

“Now the burden will be on the State Lands Commission and developers to provide the judge with facts that prove their claim that the state’s interests have been somehow undermined by reasonable height limits,” Golinger said.

“Since San Francisco voters just overwhelmingly approved the Pier 70 project’s height limit increase in November, how the state will prove its case is a mystery, but we will see,” Golinger said.

In November 2014, voters approved Proposition F, the Pier 70 Redevelopment Initiative, which allowed the developer to increase the height limits on Pier 70 from 40 feet to 90 feet.

Golinger said the developers did exactly what his group had hoped. He said the developers had a much taller proposal, they scaled it down and added affordable housing, and voters approved it.

Sheri Pemberton, a spokeswoman for the California State Lands Commission declined to comment on the judge’s motion, explaining that the Commission is unable to comment on pending litigation.

Hannah Albarazi, Bay City News


Read the key legal filings in the Prop B case by clicking on the links below:

Complaint filed by State Lands Commission challenging Prop B

Final reply brief filed by the San Francisco City Attorney

Objections filed by San Francisco City Attorney

Amicus Brief Filed on October 7, 2014 on behalf of John Burton and the Sierra Club

legal brief filed by the Chamber of Commerce



October 7, 2014

City Attorney Dennis Herrera asks judge to toss state lawsuit against height limits


City Attorney Dennis Herrera on Monday asked a judge to toss the legal challenge that state officials have brought against San Francisco’s voter-approved ballot measure that restricts tall development along the city’s waterfront.

The move comes as the State Lands Commission, which oversees coastal and some other public land in the state, filed suit in July to invalidate San Francisco’s Proposition B, which requires voter approval for any new building on Port of San Francisco property to exceed existing height limits.

Voters overwhelmingly approved the measure in a very low-turnout election in June, but California officials maintain that Prop. B illegally infringes on the state’s authority over public waterfront land that is held in trust for all state residents.

Herrera, in a statement, said the state’s position “marks a radical departure in law and practice from land use decision-making in San Francisco” by giving that authority only to the city’s Port Commission, which is appointed by the mayor, and stripping it from voters, the Board of Supervisors and other city agencies.

After half a century of successful cooperation on San Francisco’s waterfront, the California State Lands Commission has decided that San Francisco’s waterfront planning process is illegal and that voters have no say about what can be built next to the bay,” Herrera said.  “That is wrong.”

Herrera is asking a San Francisco Superior Court judge to dismiss the state’s lawsuit.  A hearing on the matter is set for January 22.

Joseph Rusconi, the deputy attorney general representing the State Lands Commission, said he had not seen the city’s court filing and would not comment.

Jennifer Lucchesi, the commission’s executive director, could not be reached for comment.

The State Lands Commission has three members Lt. Gov. Gavin Newsom, the former mayor of San Francisco; state Controller John Chiang; and state Director of Finance Michael Cohen, a cabinet-level officer appointed by Gov. Jerry Brown.

Newsom, along with Mayor Ed Lee, had been the public face for the campaign to build luxury condos near the Ferry Building in a development named 8 Washington. After that project was defeated at the ballot box in 2013, its backers, including limited-growth activists, put Prop. B on the ballot to give voters a direct say in waterfront development, including the Golden State Warriors’ now-scuttled plan to build an arena on Piers 30-32 and a nearby hotel and condo complex.

read the full story here:  http://blog.sfgate.com/cityinsider/2014/10/06/city-attorney-dennis-herrera-asks-judge-to-toss-state-lawsuit-against-height-limits/






Office of the San Francisco City Attorney

News: 2014-10-06

Herrera seeks dismissal of Prop B case that S.F. voters have no say over waterfront


State Lands Commission's view that unelected Port Commission solely governs land use regulation on Port property defies California law, decades of decision-making

Herrera's pleading, filed in San Francisco Superior Court today, argues that the State Lands Commission's view defies California's well-established constitutional right to initiative and ignores nearly five decades of land use regulation involving port property -- ever since San Francisco voters themselves approved the transfer of state tidelands to local control in 1968.

"After half a century of successful cooperation on San Francisco's waterfront, the California State Lands Commission has decided that San Francisco's waterfront planning process is illegal and that voters have no say about what can be built next to the bay," Herrera said. "That is wrong. Yet even apart from the commission's incorrect legal arguments, it's hard to understand their rationale for upending a participatory process that has made San Francisco's waterfront the envy of cities worldwide. For decades, land use decisions involving port property have included voters, elected leaders and appointed members of our Planning and Port Commissions. Together, we've worked cooperatively with the State Lands Commission, the San Francisco Bay Conservation and Development Commission, the Attorney General's Office and other governmental agencies, conservation organizations and stakeholders to honor our obligations as trustees. The State Lands Commission's complaint marks a radical departure in law and practice from land use decision-making in San Francisco and elsewhere, and it lacks a sufficient legal basis to proceed. With our demurrer today, we ask the court to dismiss this lawsuit, and we look forward to resuming our collaborative efforts with the State Lands Commission and others to hold this cherished waterfront property in trust for generations to come."

San Francisco voters enacted Prop B, a measure requiring voter approval for waterfront development height increases, in the June 3, 2014 Consolidated Direct Primary Election by a margin of 59 percent (71,421 votes) to 41 percent (49,870 votes), according to the official results tabulated by the San Francisco Department of Elections.

In 1968, the California Legislature enacted the Burton Act, which authorized the state to transfer its tidelands and submerged lands to the City and County of San Francisco to hold in trust for public trust purposes. San Francisco voters approved the Burton Act transfer on Nov. 5, 1968 in an election whose official ballot argument in favor of the transfer emphasized that, "[f]or the first time since 1863, the people of San Francisco have it in their power to regain control of their port."

Under terms of the transfer, the city created a new city agency, the Port Commission, with authority to manage the city's waterfront for the citizens of California. On Nov. 4, 1990, San Francisco voters passed Proposition H, an initiative ordinance that prohibited hotels and other "unacceptable non-maritime land uses" on the waterfront, and also required city policymakers to prepare a comprehensive Waterfront Land Use Plan to define acceptable uses and policies for waterfront property under the Port of San Francisco's control. Developed through a lengthy public planning process, and adopted by the Port Commission in 1997, the Waterfront Land Use Plan has allowed the Port Commission to work collaboratively with the San Francisco Planning Commission and Board of Supervisors, the San Francisco Bay Conservation and Development Commission, and the State Lands Commission to align the various land use plans and policies held by each entity. Port projects must comply not only with the Waterfront Plan, but also with adopted plans of the Planning Commission and BCDC. The port also consults regularly with the State Lands Commission on public trust issues in the planning process.

The California State Lands Commission is a unit of state government that exercises oversight over waterfront lands received from the United States when California became a state in 1850, including the San Francisco waterfront. The commission is also charged with holding approximately four million acres of the state's submerged lands and coastline outside of San Francisco in trust for the benefit of all Californians, subject to public trust purposes for water related commerce, navigation, fisheries, recreation, open space and other recognized uses. The commission is currently comprised of three members: Lieutenant Governor Gavin Newsom; State Controller John Chiang; and the State Director of Finance Michael Cohen, a cabinet level officer appointed by Governor Edmund G. Brown Jr. The commission is represented in the legal action by the California Attorney General's Office.

The case is: California State Lands Commission v. City and County of San Francisco, San Francisco Superior Court Case No. CGC-14-540531, July 15, 2014. Additional information on the San Francisco City Attorney's Office is available at: http://www.sfcityattorney.org/.

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Read more here:  http://www.sfcityattorney.org/index.aspx?page=612



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